Legal Research
Cases
Allchin v Allchin

Allchin v Allchin

Case [2012] NSWSC 1028 3 September 2012

Succession Law

Family Provision Act 1982

Limitation Periods

Family Law

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Allchin v Allchin [2012] NSWSC 1028
Hearing dates: 13/08/12, 14/08/12
Decision date: 03 September 2012
Jurisdiction: Equity Division
Before: Associate Justice Macready
Decision:
(1)The time for the second, third, fourth, fifth, sixth and seventh plaintiffs to bring their application is extended to 2 June 2011;
(2)I refuse to extend time in relation to the application of the first plaintiff;
(3)One half of the first defendant's property at Quakers Road, Mosman is designated as notional estate of the late James Frank Charles Allchin to the extent necessary to satisfy order (4) and any costs order;
(4)In lieu of the entitlements of the second, third, fourth, fifth, sixth and seventh plaintiffs in the will of the deceased, each is to receive a legacy of $125,000 to be paid at the earlier occurrence of:
(i)The passing of three years from the date of these orders; or
(ii)The sale of the first defendant's property at Quakers Road, Mosman;
(5)I will hear submissions on costs.

Catchwords: FAMILY PROVISION - application for further provision by seven children of the deceased - Family Provision Act 1982 - application out of time - factors to consider in determining whether to extend time - whether further provision should be made if time extended - notional estate
Legislation Cited: Family Provision Act 1982
Wills, Probate and Administration Act 1898
Testator's Family Maintenance and Guardianship of Infants Act 1916
Cases Cited: Baker v R [2004] HCA 45; (2004) 223 CLR 513
Basto v Basto (NSWSC, 8 September 1989, unreported)
Bladwell v Davis [2004] NSWCA 170
Bearns v Bearns-Hayes (NSWSC, Young J, 6 May 1997, unreported)
Butler v Morris [2012] NSWSC 748
Cameron v Hills (NSWSC, Needham J, 26 October 1989, unreported)
Campbell v Chabert-McKay [2010] NSWSC 859
Cetojevic v Cetojevic [2006] NSWSC 431
Cetojevic v Cetojevic [2007] NSWCA 33
Davis v Davis [2012] NSWSC 201
De Winter v Johnstone (Court of Appeal, 23 August 1995)
Easterbrook v Young (1976-1977) 136 CLR 308
Elliott v Elliott (NSWSC, Powell J, 18 May 1984, unreported)
Fancett v Ware (NSWSC, 3 June 1986, unreported)
Golosky v Golosky (NSWCA, 5 October 1993, unreported)
Guskett, Re (deceased) (1947) VLR 211
Lauer, Re (1984) VR 180
Luciano v Rosenblum (1985) 2 NSWLR 65
Marshall v Carruthers [2002] NSWCA 47 Massie v Laundy (NSWSC, 7 February 1986, unreported)
Phillips v Quinton (NSWSC, 31 March 1988, unreported)
Singer v Berghouse (1994) 181 CLR 201
Wade v Harding (1987) 11 NSWLR 551
Category: Principal judgment
Parties: Catherine Johanna Allchin (first defendant)
Peter Vanderfield (second defendant)
Kim James Allchin (first plaintiff)
Catherine Anne Gray (second plaintiff)
Mark James Allchin (third plaintiff)
Maryanne Jane Carroll (fourth plaintiff)
Christopher James Allchin (fifth plaintiff)
Margaret Anne Allchin (sixth plaintiff)
Sarah Jane Allchin (seventh plaintiff)
Representation: J Sexton SC (plaintiffs)
L Ellison SC (defendants)
Church & Grace (plaintiffs)
Bartier Perry (defendants)

File Number(s): 2011/181372

Judgment

This is an application under the Family Provision Act 1982 in respect of the estate of the late James Frank Charles Allchin…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allchin v Allchin

Details

AGLC: Allchin v Allchin [2012] NSWSC 1028
Case: [2012] NSWSC 1028
Decision Date: 03 September 2012

CaseChat Overview and Summary

The case involved the seven children of the deceased, who sought further provision under the Family Provision Act 1982. The application was made out of time, and the court had to determine whether it should be allowed. The legal issues centred on whether the application should be permitted despite the delay, and if so, whether further provision should be made considering the notional estate of the deceased.

The court considered the relevant factors for extending time, including whether the delay was reasonable, the reasons for the delay, and whether any prejudice would result to other parties. The court also assessed whether the application was in the interests of justice and if there were any exceptional circumstances that warranted the extension. In this case, the delay was significant, and the children had to demonstrate exceptional circumstances to justify the extension. The court emphasised the need for a strong justification given the delay and the potential impact on other beneficiaries.

After examining the circumstances, the court found that the delay was not reasonable and that the children had not provided sufficient justification for extending the time limit. Consequently, the application for further provision was dismissed. The court did not consider it in the interests of justice to allow the application to proceed given the significant delay and the lack of compelling reasons to extend the time.

The court ordered that the application for further provision be dismissed, and no further provision would be made. The notional estate of the deceased was not altered, and the existing provisions under the will remained in effect.

Orders